State First National Bank v. Nix (In re Nix)
Opinion of the Court
The issue is whether a Keogh retirement plan, created to comply with federal tax law, is an intangible on which a security lien may be created pursuant to Article 9 of the Uniform Commercial Code. We hold that it is, and, therefore, reverse the district court’s judgment that a Keogh plan is a “bank deposit” excepted from Article 9.
I.
Dr. John Nix borrowed $50,000 from First National Bank on September 17,1982, executing an agreement to secure his debt with a $50,000 Keogh Self-Security Account, No. 586-25085. Apparently, the funds invested in the account had been used to purchase shares of Wilshire Oil Company stock.
In making its loan, First National Bank relied on an opinion letter from Nix’s lawyer concluding that a lien on the Keogh account could be created under Texas law pursuant to Article 9 of the U.C.C. The bank advised the custodian of this account, Merrill Lynch, Pierce, Fenner & Smith, Inc., of the security agreement by letter. It also filed a financing statement describing the Keogh account with the Texas Secretary of State.
Nix later executed two new promissory notes in favor of the bank, one for $80,000, in return for which the bank released the 1982 promissory note, and the other for $25,000. Nix secured both of these notes by again granting the bank a lien on his Keogh account. There can be no doubt, therefore, that both Nix and the bank intended the assets in the account to serve as collateral for loans from the bank to Nix. Later, Nix withdrew some of the assets from the account, reducing its balance to $30,797.87.
Nix defaulted on both bank notes, and he and his wife filed a Chapter 7 bankruptcy petition in 1987. At that time he owed the bank $124,724.88 in principal and interest. The bank asserts that it has a perfected lien on the Keogh account and requests that the automatic stay be lifted so that it can foreclose. The trustee in bankruptcy for Nix’s estate, joined by Nix, opposes the bank’s request on the grounds that the Keogh account is a bank account rather than an intangible asset, and that the transactions between the bank and Nix did not suffice to create a valid, perfected lien.
II.
This case reaches us by an unusual route. After the Chapter 7 bankruptcy proceeding was assigned to the bankruptcy judge, the district court on its own motion withdrew it and seventeen other non-jury cases in an attempt to expedite the bankruptcy process and to reduce the backlog of cases pending in the bankruptcy court.
Routine reference to magistrates of bankruptcy matters, especially “core” proceedings
III.
A Keogh plan, also called an HR-10 plan, is designed to create a tax incentive for a self-employed person to provide retirement benefits for himself.
Funds in a bankrupt’s Keogh account are property of the bankruptcy estate, and ordinarily pass to the trustee.
As enacted in Texas,
The term “general intangibles” brings under this Article miscellaneous types of contractual rights and other personal property which are used or may become customarily used as commercial security. Examples are goodwill, literary rights and rights to performance.
The comment then refers to § 9.106 as a “catch-all definition.”
The magistrate thought, however, that Dr. Nix’s Keogh account was not subject to a lien under § 9.106 because § 9.104(12) excludes from the operation of Chapter 9 the “transfer of an interest in any deposit account.” “Deposit account” is defined in § 9.105(a)(5) as:
a demand, time, savings, passbook or like account maintained with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a certificate of deposit.13
A Keogh-plan account is not, however, as the magistrate characterized it, “simply a savings account for self-employed persons in anticipation of retirement and with a
For the foregoing reasons, the magistrate’s determination that no valid lien could be placed on Nix’s Keogh account is REVERSED. Although the magistrate also concluded that the bank had not properly perfected its lien, this conclusion depended crucially on the premise that a valid lien on a Keogh account could not be created. We therefore REMAND for further proceedings consistent with this opinion.
. See 28 U.S.C. § 157(d).
. See, e.g., Minerex Erdoel, Inc. v. Sina, Inc., 838 F.2d 781 (5th Cir.), cert. denied, — U.S. -, 109 S.Ct. 57, 102 L.Ed.2d 35 (1988).
. See In re Wood, 825 F.2d 90 (5th Cir. 1987); 28 U.S.C. § 157(b)(2); 1 Collier on Bankruptcy § 3.01 (15th Ed. 1988).
. See 28 U.S.C. § 157; see generally 1 Collier on Bankruptcy § 3.01 (15th Ed. 1988).
. See 11 U.S.C. § 105.
. See 26 U.S.C. § 401; B. Bittker, Federal Taxation of Income, Estates and Gifts ¶ 62.2 (1981 & Supp. 1987) [hereinafter cited as Bittker, Federal Taxation].
. See B. Bittker, Federal Taxation ¶ 62.2.
. In re Goff, 706 F.2d 574, 588-89 (5th Cir. 1983).
. 640 F.2d 661 (5th Cir. Unit B 1981).
. Tex.Bus. & Com.Code Ann. § 9.201 (Vernon Supp. 1989).
. See id. at § 9.103.
. Id., Uniform Commercial Code Comment on § 9.106.
. Id. at § 9.105(a)(5) (emphasis added).
. See 26 U.S.C. § 401; Bittker, Federal Taxation ¶ 62.2.
. Tex.Bus. & Com.Code Ann. § 9.105(a)(5) (Vernon 1988).
. See Tex.Rev.Civ.Stat.Ann. art. 342-902 (Vernon 1989).
Reference
- Full Case Name
- In the Matter of John O. NIX and wife, Toni T. Nix, Etc., Debtors. STATE FIRST NATIONAL BANK v. John Olin NIX and Toni Thompson Nix, Appellees Billy Lee THOMPSON, Trustee v. STATE FIRST NATIONAL BANK
- Cited By
- 2 cases
- Status
- Published